As much as it saddens me that the best test cases the RIAA can seem to find include a clueless mom and other hardened criminals, I still believe suing the actual person doing the infringement is the way to go in the present legal context.
Ernest Miller and Derek Slater both discuss a WSJ article that argues the opposite position:
« Prof. Lichtman apparently argues that indirect copyright liability for technology providers is often a better way to deal with copyright infringement than directly suing infringers. In other words, make Kazaa liable, not the people uploading music files. «
Derek takes a good look at that argument and generally accepts it « if you can ensure that the technology gets out of the womb « . The economic efficiencies argued for in the article seems reasonable enough to me and I’ll accept that it would be cheaper to sue one Kazaa inc. than individual users. I’m not convinced the world would be a better place because of that convenient shortcut though.
I like the discussions about alternate systems for dealing with content distribution but, if I’m not mistaken, the Aimster decision makes no such provision for balance and emerging technologies. Under the current jurisprudence, wouldn’t Google be infringing if they shipped their own web browser?
Ernest does express his own concerns too « Frankly, I’m not sure how the internet could have developed had Prof. Lichtman’s position been adopted back in the 70s. Heck, I’m not even sure if the personal computer (the world’s greatest copying device) could have evolved as it has, were such a broad definition of liability adopted. «
Indirect infringement is an important doctrine and a very necessary one for copyrights and other IPR to be taken seriously. Yet, I think the way it has been developed regarding P2P networks, hyperlinking and search engines is not constructive. If there was a clear legislative effort to frame the need for balance, I’d be more than happy to reconsider my opinion.
Update: More from Furdlog and LawMeme and BiPolg and Legal Theory Blog
Just be clear: I don’t entirely accept this approach even if you can allow the technology to be created and then restrict infringing uses without harming legitimate uses. That makes it better, but, as I discuss, you’re still going to limit who can innovate.
I understand and agree with the effects on innovation you highlight.
I was refering to « (Lichtman)’s right that, if you can ensure that the technology gets out of the womb, having a narrower debate about what manageable solutions to infringement can be expected might lead to some constructive solutions. » which seemed to me like a fairly significant leap of faith.
Clealy, as your comment reminds me, this is not an ideal goal in any case. Thanks for the clarification.